Lethal Force Decisions by Lyn Bates

Recent email from a reader took me to task for not criticizing one of the women whose story I told in these pages. I replied that the purpose of the story was not to criticize that specific woman for the decisions she made under pressure, but to focus on the actions of her assailant in that situation (an attempted gun grab).

Nonetheless, that reader exchange reminded me that it has been a while since I addressed in this column some of the basic rules of armed defense. When are you entitled to use lethal force against someone? The best short answer I've ever seen is the doctrine promulgated at Lethal Force Institute: "You can use lethal force when there is immediate an unavoidable danger of death or grave bodily harm to an innocent person."

What does that mean? Let's deconstruct it.

"Lethal force" is defined differently by various state laws, so you should familiarize yourself with what constitutes lethal force in your state. However, it is a safe bet that the use of guns and knives is included in this category. It might also include such things as a shod foot, martial arts weapons, bow and arrow, baseball bat, and so on, but for our purposes, we'll assume a gun.

You "can" use lethal force in some circumstances. It doesn't say you ought to use lethal force, or that you must use lethal force under certain circumstances. Shooting someone is always optional. It is always your decision, probably one of the most important decisions you will ever make. Your decision. Your responsibility.

Everyone reading this undoubtedly understands what "death" is, so we don't have to discuss that, but what is "grave bodily harm?" Again, your legal definition may vary, but it is generally considered to be an injury at the level of requiring medical care beyond simple first aid. A broken toe probably doesn't qualify, but a broken leg would. So might a blow to the head with a heavy object. Being shot or knifed is definitely grave bodily harm. Grave bodily harm can also mean crippling injury, internal injury, blindness, or serious permanent disfigurement. In most states rape and kidnapping also qualify, by statute or by case law, as well as arson of occupied premises.

How do you know if you are "in danger of" that kind of harm? This is important, because self-defense would be virtually useless if you had to wait for someone to shoot you, cut you with a knife, or break your leg before you could shoot him. But, if you shoot your attacker too soon, before you are in real danger, you might be guilty of assault with a deadly weapon, murder, or attempted murder. Having a clear understanding of how to evaluate the degree of danger is critical to your survival, both on the street and in the courtroom.

That area between too soon and too late can be described by the AOJ rule. Ability. Opportunity. Jeopardy. You must know that your assailant has the ability to inflict grave bodily harm on you. Usually the presence of a weapon is indisputable proof of ability, but there are others. Your assailant might be obviously younger, bigger, and stronger than you are, which gives him the ability to do harm even if he has no weapon. There might be several attackers acting together; that disparity of force gives them as a pack the ability to harm you even if any one of them alone would not have that ability.

Opportunity means that the assailant must be able to use his ability. Distance is often a key factor here, since someone with a knife in an elevator with you clearly has the opportunity to kill you, while someone waving a knife from a car passing your car on the highway does not. Time can be another factor; someone who will have the opportunity to kill you tomorrow may not be shot today.

Jeopardy means that the assailant must be behaving in such a way that a reasonable person would assume that he was about to use his ability and opportunity to harm you. Verbal threats can establish jeopardy, but so can non-verbal means, such as body language, facial expression, and threatening movements with a weapon (including starting to draw a concealed handgun).

Ability. Opportunity. Jeopardy. All three must be satisfied for you to be "in danger."

In addition, the danger must be "immediate and unavoidable." "Immediate" usually means within a few seconds. As we discussed in a prior article, it might be good for this time line lengthened some day, particularly for specific situations such as extreme domestic violence cases. Until and unless there is this kind of major change in the law, the danger needs to be extremely close, time-wise.

"Unavoidable" means that you can't avoid the danger by any means other than using lethal force. Avoiding a potentially lethal confrontation is always the right thing to do, if you can do so without putting yourself in more danger. Run away if you can, even if it means leaving your home, car, or business. (Your home may be your castle, but you should not stay in it if you can escape. You don’t have to leave if doing so would endanger your family members or other people, however.)

The threat must be to "a person." You aren't entitled to shoot someone to protect property. Yes, I know that some states differ on this point, but I'm trying to give the best advice possible here. Even if you feel legally and morally ok with shooting someone to protect, say, your car from being stolen, remember that you will undoubtedly end up paying far more in legal fees as a result of your action than the car is worth. Think of having to sell your home and cash in your children's' college fund to pay lawyers and the family of the person you shoot. It isn't a good financial decision to pull that trigger to protect anything but human life.

Now we get to the last phrase, which is often overlooked. What makes "an innocent person" as opposed to any other kind of person? Of course, you should not be engaged in any illegal activity. But this means more than that. It means that you must not have done anything to cause or incite the situation. If you have an altercation in a bar and allow the situation to escalate to the point where he attacks you, you are not innocent because you could have tried harder to deescalate the situation or left the bar before things got out of hand. By the way, family members, especially children, are generally considered to be innocent, so you are entitled to protect them the same way you are entitled to protect yourself. Don't count on people you don't know being innocent - more than one well-intentioned gun-carrying private citizen has gotten in terrible trouble by intervening in a situation to "save" someone they didn't know, only to find out that their perception of the situation had been dead wrong.

If you honestly and reasonably believe that you are in immediate and unavoidable mortal danger, under all the criteria discussed here, then you may pull that trigger. You must be able to explain to other people, including possibly a jury, why you had to do what you did.